The Evolution of Technology in Litigation Document Discovery

by Hinshaw & Culbertson LLP
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It is widely recognized that one of the most expensive aspects of complex litigation is the electronic discovery (“e-discovery”) phase of the case. This process involves exchanging documents and other information in electronic format (electronically stored information or ESI). 

Our experience has taught us that e-discovery must be structured and handled efficiently, to avoid monumental expenditures in wasted legal fees and costs. In large complex litigation and related government investigations, in house counsel must be confident that the law firm retained to handle the matter has sufficient agility to rapidly and reasonably conduct the required analysis to manage numerous related cases, each potentially impacting the others. Part of an efficient strategy is to correctly identify and locate key documents that are critical both to effectively meeting the company’s discovery obligations and leading to a favorable outcome.

This is true not only in major litigation. Law firms should use appropriate technology to streamline the discovery process in all cases. From the outset of litigation, in house counsel must be certain that the chosen law firm will implement a comprehensive document review strategy based on the exposure and budget for the case. Prior consultation between counsel and the client is a must.

When using the various technology assisted review techniques (including “predictive coding”), it is important that proper and effective search directives and criteria are utilized initially. Moreover, prudent modifications to the search strategy should be made as necessary and appropriate with each test set of documents and data to avoid unusable results or inefficiencies. Over multiple test searches, the search logic can be refined and applied across an entire document collection to provide short cuts not otherwise possible in traditional attorney document review.

Technology has resulted in dramatic changes in document production processes over the last few years. In the past, it was common practice for law firms to produce documents by manually reviewing huge quantities of paper files for responsiveness and privilege protection. Once the responsive set of documents was created, the document set was typically analyzed a second time for privilege, and to locate the most sensitive documents. Only thereafter would there be a physical exchanging of the target documents. This process typically was a massive undertaking, particularly in high stakes litigation. 

More recently, responsive documents were typically burned to discs and CDs of the responsive materials were exchanged. An outside document production vendor, however, would still print the majority of these electronic files into hard copy for a manual review. Large “war rooms” at a law firm would be filled with contract lawyers and paralegals hired specifically to cull and review documents. For arbitrations and trials, one of the most time consuming and expensive tasks was the organization and shipping of files and the set up of documents in a hotel conference room for use in the proceedings.

Fortunately, the mutual use of an online shared database, or the exchange of databases has became more prevalent. There remain issues, however, in the way that information is searched for and shared between parties. Sometimes, both sides already have used a specific type of database and a stipulation is arranged to share the documents in the chosen format. In other situations there may be disagreements on how to share the information. In extreme cases, counsel might attempt to obfuscate the review of data by sharing it in a less desirable or accessible format. Regardless of how the information and data is shared, primary review of the documents was and still is still conducted by lawyers and paralegals at great cost in both time and expense.

Much attention lately has been focused on the hot topics of technology assisted review and especially, predictive coding.  These methods shortcut traditional attorney review by shifting a major segment of the analysis to being conducted electronically rather than by attorneys. However, to fully capture the potential savings through use of those techniques, certain specific due diligence is required. We highlight several key litigation management issues attendant to technology assisted review below.

First, it is important to note that not every e-discovery project requires technology assisted review. Depending on the amount in controversy, the size of the document production, the sophistication of the law firms involved and the comfort level of the judge and the litigating parties, it may not make sense to utilize a computer assisted review. At times, where the document collection remains manageable, it may still be efficient to conduct a manual review and production of documents. The issues are also typically expedited where there is a general consensus by all parties on the need and manner in which to utilize a common e-discovery vendor for a computer assisted review. Some experts believe that a technology assisted review is not necessary unless there is a threshold of at least 500,000 documents that are at issue. Where the library of electronically stored information is less than that number, the cost of using an e-discovery vendor and the time consuming process involved simply might not be necessary.

Second, it is important to coordinate at the onset of discovery with counsel who are experts and experienced in e-discovery with well trusted e-discovery and document production vendors as part of the team. Although all attorneys need to be aware of the e-discovery process, there are clearly some law firms who have made these issues a priority. Such firms are most conversant within the latest, most efficient technology. While some large firms may have specialists to whom they can turn for e-discovery, many other firms do not. Therefore, it is important to identify counsel who are well versed in e-discovery well before the advent of a “bet the company” case. When such a case comes in the door it is not the time to begin looking for counsel or to commence discussions concerning the protocol on relevant time frames, technology, staffing, costs, and the strategy for interfacing with opposing counsel. Every firm that purports to be large case specialists, needs to have e-discovery vendors already on board.

Technology assisted reviews can take different variations, including predictive coding. In our next segment of this series, we will discuss a few forms of technology assisted reviews, the costs and recount the case law on this topic.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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